Rethinking the Age of Consent – A Matter of Debate

(A) INTRODUCTION

In a recent keynote address at the inaugural session of the National Stakeholders Consultation on the POCSO Act, the Chief Justice of India, D.Y. Chandrachud, opined that the legislature should consider the growing concerns relating to the age of consent under the Protection of Children from Sexual Offences Act, 2012, which is presently fixed at 18 years.¹ On the other hand, in a recent session of Parliament, the Central Government informed the Rajya Sabha that there is no proposal to reduce the age of consent from 18 years to 16 years under the POCSO Act, with the objective of preventing the criminalisation of consensual relationships between teenagers.² Further, in recent years, a series of judgments delivered by various High Courts have raised concerns regarding the criminalisation of consensual relationships between minors and young adults under the POCSO Act.

All these developments necessitate a rethinking of the age of consent in the context of the provisions of the POCSO Act. Two primary issues arise from these developments. First, whether consensual sexual relations between a minor and another minor or an adult would amount to the offence of rape. Second, whether the age of consent for sexual acts should be reduced from 18 years to 16 years.

 

(B) WHAT IS THE AGE OF CONSENT?

The age of consent refers to the age at which a person is considered legally competent to consent to sexual acts. The term “age of consent” is not expressly defined in any statute. Generally, only a person who has attained the age of majority is considered capable of giving valid consent.

The Indian Majority Act, 1875 provides that every person domiciled in India shall be deemed to have attained majority upon completion of eighteen years of age and not before. The POCSO Act, 2012 defines a “child” as any person below the age of eighteen years.

Under the prevailing law, a minor is not capable of giving consent, and any sexual act, even if consensual, involving a minor amounts to an offence under the POCSO Act. Consensual relationships between a minor and an adult fall within the scope of the POCSO Act, while consensual relationships between two minors are generally dealt with under the Juvenile Justice Act.

 

(C) AGE OF MINORITY

The term “age of minority” is not expressly defined under Indian law. However, various statutes define the age of majority. Understanding these provisions is essential to analyse the legal status of a minor.

The provisions dealing with the age of majority under different laws are as follows:

• The Indian Majority Act, 1875 provides that a person domiciled in India attains majority upon completion of eighteen years of age.
• The POCSO Act, 2012 defines a “child” as a person below the age of eighteen years.
• Section 11 of the Indian Contract Act, 1872 provides that a person is competent to contract if he or she has attained the age of majority and is of sound mind.
• Section 5 of the Hindu Marriage Act, 1955 prescribes that the bridegroom must have completed twenty-one years of age and the bride eighteen years of age at the time of marriage.
• The Prohibition of Child Marriage Act, 2006 defines a “child” as a male who has not completed twenty-one years of age and a female who has not completed eighteen years of age.

An analysis of the above provisions indicates that a person who has not attained the prescribed age of majority is considered a minor. The Criminal Law (Amendment) Act, 2013 introduced provisions under the Juvenile Justice law whereby a juvenile between the ages of 16 and 18 years may be tried as an adult in cases involving heinous offences. This indicates that, in certain circumstances, a minor may be treated as an adult for criminal prosecution.

 

(D) AGE OF MINORITY VERSUS MATURITY

The recent increase in cases filed under the POCSO Act arising from consensual relationships, as well as cases stemming from the consequences of child marriage, necessitates a re-examination of the relationship between age of minority and age of maturity.

• Child Marriage versus Offences of Rape

The Prohibition of Child Marriage Act penalises the promotion of child marriage. However, a child marriage does not become void merely because one party is a minor. Further, sexual relations with a minor wife above the age of fifteen years have historically been exempted from the offence of rape under the Indian Penal Code. In contrast, the POCSO Act criminalises all forms of sexual activity involving a person below eighteen years of age.

• Conflict with Personal Law

Personal laws govern marriage for different communities. Under Muslim personal law, the attainment of puberty is a condition for a valid marriage. The application of the POCSO Act in such cases creates a conflict with personal laws.

• Maturity of Body versus Maturity of Mind

The POCSO Act was enacted to protect children from sexual abuse and defines a child as a person below eighteen years of age. The law equates bodily maturity with the age of majority. However, mental maturity refers to the capacity to make conscious and informed decisions regarding one’s own body.

Consensual relationships involving minors are criminalised under the POCSO Act. In several instances, parents have filed rape cases against young men with whom their teenage daughters have eloped. Such situations create a conflict between the statutory framework and the minor’s ability to make conscious decisions regarding personal relationships.

 

(E) CONSENSUAL RELATIONSHIPS WITH MINORS – JUDICIAL VIEW

The Supreme Court and various High Courts have examined cases involving allegations of rape arising out of consensual relationships under the POCSO Act and have called for a re-evaluation of the age of consent.

The Delhi High Court, in AK v. State (Govt. of NCT of Delhi) (2022)³, observed that the intention of the POCSO Act was to protect children from sexual abuse and not to criminalise consensual romantic relationships between young adults.

The Madras High Court, in Ravi @ Virumandi v. State (2022)⁴, while upholding the conviction, observed that it was “eagerly” awaiting an amendment to appropriately deal with cases involving adolescent relationships.

The Karnataka High Court⁵, in a significant judgment, observed that in view of ground realities, it is imperative for the Law Commission to reconsider the age of consent under the POCSO Act.

The Punjab and Haryana High Court, in Gulam Deen v. State of Punjab (2022)⁶, held that under Muslim personal law, a Muslim girl above the age of fifteen years is competent to enter into a contract of marriage. This judgment has been challenged before the Supreme Court by the National Commission for the Protection of Child Rights (NCPCR) on the ground that it is contrary to the Prohibition of Child Marriage Act and the POCSO Act, as it effectively permits child marriage.⁷

 

(F) A MATTER OF DEBATE

The foregoing discussion highlights the need for a broader debate on rethinking the age of consent. The following key issues arise for consideration:

• Whether reducing the age of consent from 18 years to 16 years under the POCSO Act is necessary.
• Whether consensual relationships involving minors should be penalised under criminal law.
• Whether criminalising consensual relationships violates a minor’s right to bodily autonomy.
• Whether the provisions of the POCSO Act conflict with personal laws.

These issues have been examined in various decisions of the Supreme Court and High Courts.

On the first issue, as discussed earlier, the Chief Justice of India has urged Parliament to consider concerns relating to the age of consent under the POCSO Act. This issue also gains significance in light of the recent proposal to increase the age of marriage for women from 18 to 21 years.

On the second and third issues, the Madras and Karnataka High Courts have suggested that Parliament should re-evaluate the age of consent under the POCSO Act.

On the final issue, the decision of the Punjab and Haryana High Court is pending consideration before the Supreme Court, whose ruling will be crucial in resolving the conflict between the POCSO Act and personal laws.

 

(G) CONCLUSION

As discussed above, Parliament must deliberate and debate the issue of the age of consent. Under the present legal framework, a minor is not capable of giving consent, and sexual relations with a minor, even if consensual, are punishable under the POCSO Act.

One view is that penalising consensual relationships involving minors violates the right to bodily autonomy. On the other hand, it may be argued that if a minor is dependent on guardians for protection and incapable of making independent decisions, the question of consent does not arise, as a minor is legally incapable of giving consent.

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References

1.      Livelaw.in – CJI DY Chandrachud Urges Parliament To Consider Concerns About Age Of Consent Under POCSO Act

2.      Livelaw.in – No Proposal To Reduce Age Of Consent Under POCSO Act : Centre Tells Rajya Sabha

3.      AK Vs. State Govt of NCT of Delhi (Delhi High Court 2022)

4.      Ravi @ Virumandi v State (Madras High Court 2022)

5.      2022 LiveLaw (Kar) 443

6.      Gulam Deen v State of Punjab (Punjab & Haryana High Court 2022)

7.      BarandBench.com – NCPCR moves Supreme Court against HC order allowing Muslim girl over 15 years to enter into valid marriage